Hearing on Orchard Park dispute set for spring

Dispute likely to continue as evidentiary hearing scheduled for March

The dispute between the city and a community group over the fate of Orchard Park in Logantown seems likely to extend for at least several more months, after a pre-trial conference Thursday at which Judge David Consiglio scheduled an evidentiary hearing for March.

The focus of the pre-trial conference was on the lawsuit's disputed claim that the city dedicated the park for public use, if only by implication, thus protecting the park from development.

But Consiglio's ruling Thursday broadens it to include a forthcoming city claim that even if the park has been dedicated, a provision in the state's Donated or Dedicated Property Act should allow for undoing that dedication through the county Orphans Court.

It makes sense to combine those two issues, rather than litigating the matter of dedication first, then, potentially, the matter of whether the city can justify to the court that the dedication should be overturned, according to city solicitor Mike Wagner, city Redevelopment Authority solicitor Patrick Fanelli and their adversary, community group lawyer Tim Fitchett of Fair Shake Environmental Legal Services.

Under the DDPA, municipalities can petition their counties' orphans courts for "relief" from prior dedications of parkland, based on maintenance of the "original use" of such properties being "no longer practicable or possible"; or the parkland having "ceased to serve the public interest."

Municipalities can also petition for relief if they are "in doubt as to the effectiveness or the validity of an apparent dedication, because of the lack of a record of the acceptance of the dedicated land."

In cases where courts rule in favor of municipalities, they can "substitute other lands or property of at least equal size and value" "to carry out the trust purposes"; or if other such property isn't available, the municipalities can "sell the property and apply the proceeds to carry out the trust purposes"; or if the "original trust purpose is no longer practicable or possible or in the public interest," the municipalities can "apply the property or the proceeds therefrom in the case of a sale to a different public purpose"; or if there is no record of a public "acceptance" of a dedication to be found, municipalities can renounce the public's claim to the land altogether, according to the law.

"Can it still be used as a park?" will be a question to be answered by the judge, Fitchett said after the hearing.

The city's position is that the ground "hasn't been, can't be and shouldn't be used as a park," Fanelli said.

If the judge determines the ground has been dedicated as a park, he'll need to decide "on the merits of rescinding the dedication" to allow "the city and the Redevelopment Authority to improve the neighborhood," Wagner said.

In the months ahead, as the parties research the issues to prepare for the evidentiary hearing, they're welcome to take the case to mediation, Consiglio said.

In December, the Redevelopment Authority accepted a proposal from Graystone developer Jeff Long to build seven single-family homes on the tract, following Long's response to a request for proposals.

The development effort is in response to a push from City Council to construct new homes and to renovate blighted ones, where possible, in order to reverse generations of tax base losses.

The ground has been used as a park for more than 100 years, it's listed as a park on the city's comprehensive plan and website and has recently featured play equipment and open space -- having come under control of the city in 1944 via a tax sale purchase of seven adjacent lots, Consiglio noted in July in denying a request by the city to dismiss the community lawsuit at the time.

Mirror Staff Writer William Kibler is at 814-949-7038.